With so many commercials and advertisements bombarding you today, you likely tend to tune out most of the marketing attempts thrown your way. Especially commercials employing loud or intimidating tactics to sell their products. Lawyers and law firms are notorious for producing some of the most inane, cheesy commercials on television. Many people mistakenly believe that “anything goes” in the world of attorney marketing. This is not the case. All states, especially California, have included in their ethical canons guidelines pertaining to ethical attorney marketing.
Not too long ago, attorneys and law firms were forbidden from advertising at all! Hard to believe, but it is true. The occasional brash attorney would advertise his likeness and contact information on a park bench, much to the chagrin of the state bar association. After awhile, however, attorneys began to petition the state court systems to broaden the horizon and allow more liberal marketing tactics.
Beginning in 1977, the U.S. Supreme Court has held that attorney marketing and advertising is protected free speech under the First Amendment. So long as the advertisements are not false or misleading, the speech may only be restricted to advance a significant governmental interest. In addition, the restriction must be content-neutral and the may only serve to protect state consumers from false or misleading information. Any governmental restrictions beyond that were deemed unconstitutional.
In a 1988 case, one state tried again to enforce limits upon lawyer advertising but was again met with opposition. In Shapero v. Kentucky Bar Association, the state attempted to limit attorney Shapero from what it labeled “distasteful” attorney marketing. It further contended that distasteful attorney marketing would shed a negative light upon the entire judicial system leading to citizen mistrust of the judiciary and an overall injurious effect to the effective administration of justice. The Court held that while distasteful attorney advertisement may be detrimental and cast adverse affects upon public perceptions of the court system, it is still protected by the First Amendment. Specifically, “distasteful” was far too subjective for any court to rule upon.
Today in California, the Bar Association has enumerated several types of attorney and law firm marketing strategies that are forbidden. For example, attorneys are not permitted to guarantee, warrant or predict the outcome of any litigation, including testimonials by former successful clients. Attorneys may not market to individuals in a fragile mental or physical state; in other words, marketing may not be targeted at substantially vulnerable individuals. California lawyers are expressly forbidden from advertising services at the scene of an accident, en route to a hospital or within any health care facility.
Additional canons of professional ethics require that any solicitation sent by mail are labeled as “advertisements,” “newsletter” or similar language meant to convey the message that the mailing is nothing more than marketing. Attorneys are forbidden from tying their name or the name of their firm with any governmental agency, non-profit legal agency, of-counsel to another law firm or any private practice law firm with a substantially different practice area.
California attorneys may never refer to themselves as “certified specialists” unless the advertisement includes the official name of the entity conferring such title.
A rule particularly akin to many of today’s late-night lawyer commercials: advertising depicting a dramatization is forbidden unless it expressly states that the depictions are dramatized and do not represent actual events.